Request By:
Carol Jackson, Councilmember
Anne V. Gabbard, Councilmember
Office of Urban County Government
The Municipal Building
136 Walnut Street
Lexington, Kentucky 40507
Opinion
Opinion By: Steven L. Beshear
This opinion is in answer to your letter of June 20, 1980 in which you wish to know the legality or constitutionality of local container legislation. Although your letter does not specify the exact type of ordinance you are interested in, Ms. Gabbard, in an August 22, 1980 phone conversation with David K. Martin of this office, said that you were interested in something along the line of State Senator John Berry's "bottle bill" which failed in the 1980 Kentucky General Assembly.
In general, Senate Bill 145, the "bottle bill", required that every beverage container have a refund value of not less than five cents and that dealers and distributors of such beverages shall not refuse to pay the consumer and dealer respectively the refund value of such containers. The bill had criminal penalties for violation of its provisions.
Kentucky Revised Statutes (KRS) Chapter 67A establishes urban-county government, which applies to Lexington and Fayette County. Urban-county governments have "the combined power of a county and a city of that class of cities to which the city of the highest class in the county belonged on the day prior to merger".
Jacobs v. Lexington-Fayette Urban County Government, Ky., 560 S.W.2d 10 (1977) at 12.
KRS 67A.060 gives the constitutional and statutory powers of urban-county governments. It states:
(1) Urban-county governments may exercise the constitutional rights, powers, privileges, immunities and responsibilities of counties and cities of the highest class within the county;
(a) In effect on the date the urban-county government becomes effective;
(b) Which may subsequently be authorized for or imposed upon counties and cities of that class; and
(c) Which may be authorized for or imposed upon urban counties.
(2) Rights, powers, privileges and immunities exercised by urban-county governments pursuant to subsection (1)(a) and (b) of this section shall continue to be authorized for urban-county governments notwithstanding repeal or amendment of the statutes upon which they are based unless expressly repealed or amended for urban-county governments.
KRS 67A.070 gives the ordinance powers of urban-county governments.
(1) Urban-county governments may enact and enforce within their territorial limits such tax, licensing, police, sanitary and other ordinances not in conflict with the constitution and general statutes of this state now or hereafter enacted, as they shall deem requisite for the health, education, safety, welfare and convenience of the inhabitants of the county and for the effective administration of the urban-county government.
(2) Urban-county government ordinances shall be deemed to conflict with general statutes of this state only:
(a) When the ordinance authorizes that which is expressly prohibited by a general statute; or
(b) When there is a comprehensive scheme of legislation on the same subject embodied in a general statute.
As stated in KRS 67A.060, urban-county governments have the power of counties, including rights that may be authorized by the General Assembly subsequent to the formation of the urban-county government. KRS 67A.060(1)(b). The authority of an urban-county government to reduce and control litter by container legislation, under the powers given to counties, would be derived from several provisions of KRS 67.083, county home rule, enacted in 1978.
KRS 67.083(3) states that the fiscal court of any county may enact ordinances, issue regulations, levy taxes, issue bonds, appropriate funds and employ personnel in performance of the following public functions:
(a) Control of animals, and abatement of public nuisances;
(h) Conservation, preservation and enhancement of natural resources including soils, water, air, vegetation and wildlife;
(m) Regulation of commerce for the protection and convenience of the public;
(o) Exclusive management of solid waste by ordinance or contract or by both and disposition of abandoned vehicles;
KRS 67.083, of course, also would apply to other counties which would want to adopt local container ordinances.
Furthermore, urban-county governments have the authority on their own to enact "tax, licensing, police, sanitary and other ordinances . . . requisite for the health, education, safety, welfare and convenience of the inhabitants of the county." KRS 67A.070(1).
There are several limitations on this authority. First, the ordinance may not be in conflict with the state constitution or statutes. KRS 67A.070(1), (2). This does not appear to be a problem for a proposed "bottle bill" because there is no state equivalent. Nor does such a proposal conflict with KRS 224.905-224.970, litter control, in particular the antilitter assessment in KRS 224.955. In any event the litter control act was declared unconstitutional by the Kentucky Supreme Court as violating Section 46 of the Kentucky Constitution, which concerns procedures for passing bills in the Kentucky legislature. D&W Auto Supply v. Department of Revenue (May 13, 1980).
The proposed bottle bill is not preempted by statutes or regulations of the Department of Alcoholic Beverage Control, (ABC), in particular 804 KAR 11:020. KRS 241.060 sets out functions, powers and duties of the ABC Board. 241.060(1) states in part that one of these is to:
adopt reasonable regulations governing the procedure relative to applications for and revocations of licenses and relative to all other matters over which the board has jurisdiction, and for the supervision and control of manufacture, sale, transportation, storage, advertising, and trafficking of alcoholic beverages.
This language does not state that only the ABC Board has authority to regulate the distribution of alcoholic beverages. There is nothing in the language to indicate that restrictions of some sort cannot be applied to beverage containers, especially where the regulation has nothing to do with the alcoholic nature of the beverage.
Furthermore, the ABC Board only has powers to regulate alcoholic beverages, defined at KRS 241.010(2); these include distilled as well as fermented beverages. ABC powers certainly do not preempt the field to which the local container ordinance would apply, namely "beverages" and "beverage containers" . For example, "beverages" are defined in Senator Berry's bill to include not just beer and other malt beverages, but also "mineral waters, soda water and similar carbonated soft drinks". The ABC Board has jurisdiction over only a segment of the types of beverages included in a proposed bottle bill. In addition, "beverage container" is defined as "individual, separate, sealed glass, metal or plastic bottle, can, jar or carton carrying a beverage" .
804 KAR 11:020 specifically requires that a minimum container charge or deposit be collected by all brewers and distributors shipping beer into and selling beer in Kentucky; the charge is, at the minimum, sixty cents per case of 24 12-ounce returnable bottles or sixty cents per case of 12 32-ounce returnable bottles or the equivalents of these. While this regulation deals specifically with beer in returnable bottles, the proposed "bottle bill" encompasses a broad range of containers, which are not necessarily all "returnables" by current practice, and a variety of types of beverages.
The purpose of 804 KAR 11:020 is "to prevent brewers or distributors from refusing to collect a deposit upon returnable bottles as an inducement to the sale of their product". This is an entirely different purpose from that of the local container ordinance which would aid the local community in litter control. Furthermore, a requirement in a proposed "bottle bill" for a refund value of not less than five cents (or other sum) on all beverage containers does not conflict with the specific language of the ABC regulation which requires a deposit of at least sixty cents per case of beer.
One must look at the language of the Kentucky statutes giving ordinance powers to cities, counties, and urban-county governments to discern whether there are any conflicts with ABC statutes and regulations. As noted, supra, KRS 67A.070 states that urban-county governments may enact ordinances so long as they are "not in conflict" with the state constitution or statutes. An ordinance would be in conflict with a general state statute only if the matter is "expressly prohibited" by statute or if there is a "comprehensive scheme of legislation" on the same subject.
The same language applies to cities. KRS 82.082, city home rule, which was passed by the General Assembly in 1980 as Senate Bill 41, states:
(1) A city may exercise any power and perform any function within its boundaries,. . . that is in furtherance of a public purpose of the city and not in conflict with a constitutional provision or statute.
(2) A power or function is in conflict with a statute if it is expressly prhibited by a statute or there is a comprehensive scheme of legislation on the same general subject embodied in the Kentucky Revised Statutes. . . .
This applies to the urban-county government because it has the powers of the city of the highest class within the county, KRS 67A.060(1) supra.
804 KAR 11:020 does not expressly prohibit other deposits on returnable beer containers, let alone other types of containers for other types of beverages; nor is it a comprehensive scheme on the subject of beverage container deposits.
If a county wishes to regulate in an area which the state regulates, the county ordinance must be "consistent with" state statutes or regulations. KRS 67.083(6). With respect to the "bottle bill" the state is not regulating the same area; any overlap with the ABC beer deposit requirement would not be inconsistent with it.
In addition, if a proposed container ordinance is to involve taxation, the limitation on local government's authority to enact taxes must be considered. Cities and counties, and by extension, urban-county governments, are limited to the levying of ad valorem taxes and occupational or licensing taxes. See, e.g.,
Driver v. Sawyer, Ky., 392 S.W.2d 52 (1965).
In summary, there do not appear to be any constitutional or legal reasons why an urban-county government or a county in Kentucky would not have the authority to enact local antilitter ordinances based on Senator Berry's "bottle bill".
The Blue Grass Area Development District, in which Fayette County is included, was created, along with other area development districts, by KRS 147A.050. The powers of the board of directors for each district are set out in KRS 147A.080, and the board's duties in KRS 147A.090. In contrast to counties, cities, and urban-county governments, it does not have the authority to enact ordinances. Thus if the counties which make up the Blue Grass District desire to enact anti-litter container ordinances, the fiscal courts of each county must enact the ordinances on their own; at the most, the board of directors of the development district might act in an advisory capacity.
The Virginia Supreme Court has recently declared two local "bottle bills" as unconstitutional. However, these cases are distinguishable from the situation in Kentucky. In Board of Supervisors of Loudoun County v. Pumphrey (August 28, 1980) the Virginia Court struck down the county ordinance as it applied to containers for beer and other malt beverages because it could not be harmonized with a state statute prohibiting local governments "from adopting any ordinance regulating the 'bottling, possession, sale, distribution, handling, . . . or dispensing of alcoholic beverages in Virginia.'" Another Virginia statute prohibits deposits on disposable bottles containing alcoholic beverages. Kentucky, by contrast, has no such statutory prohibitions.
In Tabler v. Board of Supervisors of Fairfax County (August 28, 1980), the Virginia Court struck down the county ordinance which required a cash refund for containers of nonalcoholic beverages; the Court stated that the legislature had not intended to confer the power to set refund values upon local governments. The situation in Virginia can be distinguished from that in Kentucky. According to the Court, Virginia follows the rules of strict construction concerning legislative powers of local governments. In Kentucky, on the other hand, local governments have rather broad powers under home rule. See KRS 67.063(3), 67A.070, and 82.082, supra. Furthermore, the fact that the Kentucky General Assembly has failed to pass a state "bottle bill" does not mean that it has precluded local governments from promulgating such ordinances on the local level. Rather, one could even interpret this legislative inaction to mean that the members of the General Assembly perceived this to be a matter which properly could be done at the local level, for the legislature has not "expressly prohibited" it nor has it provided a comparable "comprehensive scheme" .
Given that there is no constitutional or legal problem with the enactment of a container ordinance, the next question is whether such an ordinance itself would be constitutional. Container laws have been held to be constitutional in other states, e.g.
Anchor Hocking Glass Corp. v. Barber, 105 A.2d 271 (Vt. 1954), and
American Can Co. v. Oregon Liquor Control Commission, 517 P.2d 691 (Or.App. 1973). See 73 ALR3d 1105.
Bowie Inn, Inc. v. City of Bowie, 335 A.2d 679 (Md. 1975), upheld a city anti-litter ordinance against constitutional challenges on several fronts. The ordinance required that, in the municipality, a deposit of at least five cents be charged on all soft drink or malt beverage containers sold at retail level, to be given back when the containers were returned; the ordinance had criminal penalties. The Maryland Court held that the ordinance was constitutional, under the due process clause of the 14th Amendment, as an exercise of the police power and was not void for vagueness. It also did not violate the equal protection clause of the 14th Amendment or the Commerce Clause of the United States Constitution. Furthermore, at the state level, the Maryland General Assembly had authorized cities to enact ordinance regulating garbage or trash, and the ordinance was not preempted by state alcoholic beverage regulations.
An anti-litter ordinance such as the one the City of Bowie enacted would not automatically be constitutional or legal in Kentucky because provisions in the Kentucky Constitution and statutes might differ from those in Maryland. As a result, any ordinance proposed by Lexington-Fayette Urban County Government must be carefully drafted in order to avoid legal difficulties.
If you have any further questions, feel free to contact this office.